EXHIBIT 1.4
THIRD AMENDMENT TO RIGHTS AGREEMENT
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THIRD AMENDMENT dated as of March 11, 1998 (the "Third Amendment") to
the Rights Agreement dated as of November 9, 1988, as amended (the "Rights
Agreement"), between Safety-Kleen Corp., a Wisconsin corporation (the
"Company"), and The First National Bank of Chicago, as Rights Agent (the "Rights
Agent").
Pursuant to Section 27 of the Rights Agreement, the Company and the
Rights Agent may from time to time amend the Rights Agreement in accordance with
Section 27 thereof. All acts and things necessary to make this Third Amendment
valid and enforceable have been performed and done, including, as required by
Section 27(b) of the Rights Agreement, the delivery by the Company to the Rights
Agent of certified resolutions of the Board of Directors of the Company. Unless
the context otherwise requires, terms not defined herein have the same meanings
as in the Rights Agreement.
In consideration of the foregoing and the mutual agreements herein,
the Company and the Rights Agent agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended by deleting
the first sentence of that section and substituting the following therefor:
"(a) "Acquiring Person" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 20% or more of the aggregate number of Common
Shares of the Company then issued and outstanding, but shall not
include (i) the Company, (ii) any Subsidiary, (iii) any employee
benefit plan of the Company or any Subsidiary, (iv) any entity holding
Common Shares for or pursuant to the terms of any such plan, (v) SK
Parent Corp., a Delaware corporation ("Parent"), SK Acquisition Corp.,
a Wisconsin Corp. ("Purchaser"), or any Affiliate or Associate of
Parent or Purchaser; provided, however, that Parent, Purchaser and the
Affiliates and Associates of Parent and Purchaser will not be excepted
from this definition of "Acquiring Person" in the event that any of
Parent, Purchaser or any Affiliate or Associate of Parent or Purchaser
becomes the Beneficial Owner of 20% or more of the aggregate number of
Common Shares of the Company then issued and outstanding other than
pursuant to the terms of the Agreement and Plan of Merger, dated as of
November 20, 1997 (the "Merger Agreement"), between the
Company, Parent and Purchaser or (vi) Xxxxxxx Environmental Services,
Inc., ("Xxxxxxx Environmental"), LES Acquisition, Inc. ("LES
Acquisition") or any Affiliate or Associate of Xxxxxxx Environmental
or LES Acquisition; provided, however, that Xxxxxxx Environmental, LES
Acquisition, and the Affiliates and Associates of Xxxxxxx
Environmental and LES Acquisition will not be excepted from this
definition of "Acquiring Person" in the event that any of Xxxxxxx
Environmental, LES Acquisition or any Affiliate or Associate of
Xxxxxxx Environmental or LES Acquisition becomes the Beneficial Owner
of 20% or more of the aggregate number of Common Shares of the Company
then issued and outstanding unless the acquisition by which any such
person becomes the Beneficial Owner of 20% or more of such Common
Shares satisfies each of the following requirements: (A) it is
consummated prior to Midnight, Eastern Standard Time on March 27, 1998
(B) it is consummated pursuant to either the terms of the Xxxxxxx
Environmental Exchange Offer as stated in the Amended Prospectus of
Xxxxxxx Environmental dated January 28, 1998 as filed on such date
("Amended Prospectus") or terms more favorable to shareholders of the
Company than the terms of such Amended Prospectus; without limiting
the generality of the foregoing, the Minimum Condition, as defined in
the Amended Prospectus, must not have been waived or decreased, and
the Xxxxxxx Environmental Offer Consideration, as defined in the
Amended Prospectus, must not have been diminished and (C) prior to
such consummation, Xxxxxxx Environmental has publicly announced (and
reflected in an appropriate filing with the Securities and Exchange
Commission) (the "Announcement and Filing") that it will effect the
Merger, as defined in the Amended Prospectus, with per share
consideration paid in the Merger that is at least as favorable as the
per share consideration paid in the acquisition referred to in clause
(B).
2. Section 3(a) of the Rights Agreement is hereby amended by
substituting for the final sentence thereof the following:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely as a
result of (i) the approval, execution or delivery of the Merger
Agreement, (ii) the commencement or consummation of the transactions
contemplated by the Merger Agreement or (iii) the commencement or
consummation occurring prior to Midnight, Eastern Standard Time on
March 27, 1998 (accompanied by the Announcement and Filing prior to
such consummation), of the exchange offer contemplated by the Amended
Prospectus, on the terms therein or on terms more favorable to
shareholders of the Company than the terms of the Amended Prospectus;
without limiting the generality of the foregoing, the Minimum
Condition, as defined in the Amended Prospectus, must not have been
waived or decreased, and the Xxxxxxx Environmental Offer
Consideration, as defined in the Amended Prospectus, must not have
been diminished."
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3. Section 11(a)(ii) of the Rights Agreement is hereby amended by
substituting for the final sentence thereto the following:
"Notwithstanding anything in this Agreement to the contrary, an event
described in this subparagraph (ii) of Section 11(a) shall not be deemed to
have occurred solely as a result of (i) the approval, execution or delivery
of the Merger Agreement, (ii) the commencement or consummation of the
transactions contemplated by the Merger Agreement or (iii) the commencement
or consummation occurring prior to Midnight, Eastern Standard Time on March
27, 1998 (accompanied by the Announcement and Filing prior to such
consummation), of the exchange offer contemplated by the Amended
Prospectus, on the terms therein or on terms more favorable to shareholders
of the Company than the terms of the Amended Prospectus; without limiting
the generality of the foregoing, the Minimum Condition, as defined in the
Amended Prospectus, must not have been waived or decreased, and the Xxxxxxx
Environmental Offer Consideration, as defined in the Amended Prospectus,
must not have been diminished."
4. Section 13(a) of the Rights Agreement is hereby amended by substituting
for the final sentence thereof the following:
"Notwithstanding anything in this Agreement to the contrary, an event
described in any of clauses (i), (ii) or (iii) of this Section 13(a) shall
not be deemed to have occurred solely as a result of (i) the approval,
execution or delivery of the Merger Agreement, (ii) the commencement or
consummation of the transactions contemplated by the Merger Agreement or
(iii) the commencement or consummation occurring prior to Midnight, Eastern
Standard Time on March 27, 1998 (accompanied by the Announcement and Filing
prior to such consummation), of the exchange offer contemplated by the
Amended Prospectus, on the terms therein or on terms more favorable to
shareholders of the Company than the terms of the Amended Prospectus;
without limiting the generality of the foregoing, the Minimum Condition, as
defined in the Amended Prospectus, must not have been waived or decreased,
and the Xxxxxxx Environmental Offer Consideration, as defined in the
Amended Prospectus, must not have been diminished."
5. This Third Amendment shall be governed by and construed in accordance
with the laws of the State of Wisconsin applicable to contracts made and
performed entirely within such state.
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6. In all respects not inconsistent with this Third Amendment, the Rights
Agreement is hereby ratified, approved and confirmed. In executing and
delivering this Third Amendment, the Rights Agent shall be entitled to all the
privileges and immunities afforded to the Rights Agent under the Rights
Agreement.
7. If any term, provision, covenant or restriction of the Third Amendment
is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the other terms, provisions, covenants and restrictions
of this Third Amendment, and of the Rights Agreement, shall remain in full force
and effect and shall in no way be affected, impaired or invalidated.
8. This Third Amendment may be executed in any number of counterparts,
each of which shall be an original, but all of which shall together constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be duly executed and attested, all as of the date first above written.
SAFETY-KLEEN CORP.
By:
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THE FIRST NATIONAL BANK OF CHICAGO
By:
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